[2022] KEHC 381 (KLR)

RWK v PKG (Civil Appeal E059 of 2021) [2022] KEHC 381 (KLR) (Family) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 381 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal E059 of 2021

AO Muchelule, J

May 5, 2022

Between

RWK

Applicant

and

PKG

Respondent

(Being an application for extension of time to appeal out of time against the decision of the Children’s Court by Hon. R.O. Mbogo delivered on 19th December 2018 in Children’s Court Case No. 203 of 2009)

Ruling

1. From the ruling delivered on 3rd June 2021 by the learned Resident Magistrate in the Children Court at Milimani, the dispute between the applicant RWK and the respondent PKG begun in 2009 when the applicant filed a plaint in the court seeking the custody and maintenance of their child HNK It would appear that the applicant obtained some interim orders. Whatever happened, on September 4, 2018 the court ordered a retrial and vacating of the interim orders. The retrial took place on December 19, 2018 when the applicant failed to call evidence. The matter was dismissed for lack of evidence.

2. By an application dated January 17, 2018 the applicant applied before the same court to have the orders dismissing the suit to be reviewed and the suit reinstated for hearing. She further sought that the matter goes before the Chief Magistrate of the court for directions. She did not think that the trial court would accord her justice.

3. Before that application was heard, she went to the High Court for orders of judicial review by application dated May 29, 2019 in Judicial Review Case No. 163 of 2019. The matter was heard and dismissed on November 21, 2019. That was when the applicant went before the trial court which referred the matter to the Chief Magistrate. The Chief Magistrate advised that if the applicant was not happy with the decision of the trial court she should appeal. Instead, she decided to pursue the application for review and reinstatement. The application was heard, and on June 3, 2021 was dismissed.

4. The present application is dated June 13, 2021. It seeks the extension of time to appeal the judgment delivered on December 19, 2018 that dismissed the suit at the Children Court. In the grounds and supporting affidavit, the applicant has outlined the history of the case, and added that it was her decision to go for judicial review and the disruption of the court operations owing to Covid-19 that had led to the delay in bringing the application. She stated that she was keen to appeal, and annexed a draft memorandum of appeal.

5. The respondent opposed the application through his replying affidavit sworn on November 25, 2021. According to him, the application was not only brought late but was also an afterthought after everything else had failed. He stated that the attempt to revive this old matter that had been concluded was not in the best interest of the child.

6. This application was brought under sections 3A and 63 of the Civil Procedure Act , Order 12 rule 7 and Order 50 rule 6 of the Civil Procedure Rules. Under section 79G of the Civil Procedure Actthe appeal ought to have been brought within a period of thirty days, with the provision that such appeal may be admitted out of time if the appellant satisfies the court that he has a good and sufficient cause for not filing the appeal in time. I also consider the power to extend time as provided by section 95 of the Civil Procedure Act that states as follows:-“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”

7. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others[2014] eKLR, the Supreme Court was dealing with the question of extension of time to file an appeal when it observed that extension of time is not a right of a party, but an equitable remedy that is only available to a deserving party at the discretion of the court. The party applying for extension has to explain the delay to the satisfaction of the court. The reasons for the delay have to be given. The court has to consider whether there will be prejudice to be suffered by the respondent if extension is granted, and whether such prejudice may not be adequately compensated by the award of costs. It should also be considered whether there has been delay in bringing the application.

8. I have considered this application, and the written submissions filed. The judgment sought to be appealed against was delivered on December 19, 2018. The application was brought about two years and six months later. Each case depends on its peculiar facts, but I note that inChairman, Kenya National Union of Techers & another v Henry Inyangala & 2 others [2018] eKLR, the Supreme Court held that the delay of one year and three months was inordinate and that the applicants were guilty of laches. The court observed that the explanation given by the applicants was unsatisfactory and unreasonable.

9. In the instant case, the applicant, instead of appealing the judgment, filed both application before the trial court and an application for judicial review before the High Court. She took time to pursue the judicial review until she lost. She then went back to the application which she pursued and lost. It then occurred to her that she should now seek to appeal. Nothing had stopped her from filing the appeal as she pursued the other avenues. It is obvious to me that the applicant was playing roulette with her matter. In the process she was caught up with time. Her reference to Covid-19 was a red-herring, because, even with the pandemic, she was able to pursue the judicial review in the High Court and the application in the subordinate court. In the circumstances, I consider the delay in bringing the application to be inordinate and the explanation to be unreasonable and not acceptable. Given the fact that the dispute between her and the respondent has remained undecided since December 19, 2018, it is clear that the later would be prejudiced immensely if the application were to be allowed.

10. In conclusion, the application has no merits and is dismissed with costs.

DATED AND DELIVERED IN NAIROBI THIS 5THDAY OF MAY 2022. A.O. MUCHELULEJUDGE